1 in the high court of karnataka at bangalore...
TRANSCRIPT
1
® IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 6th DAY OF DECEMBER, 2012
BEFORE
THE HON’BLE MR. JUSTICE A.N. VENUGOPALA GOWDA
WRIT PETITION NO.18428/2012 C/W
W.P.NOS.6380/2012, 11611-11621/2012 AND
38597-38600/2011 (S-RES)
In W.P.NO.18428/2012
BETWEEN:
Sri V.H. Mahesha, S/o. Honnegowda,
Aged about 34 years, C/o. N. Sridhar, No.6,
II Floor, Govindappa Lane, Thigalarapet,
Bangalore – 560 002. ... PETITIONER
(By Sri G.S. Aruna for M/s. Kesvy & Co. Advs.)
AND:
The Registrar General,
High Court of Karnataka, Dr. Ambedkar Veedhi,
Bangalore – 560 001. ... RESPONDENT
(By Smt. Manjula R. Kamadolli, HCGP)
2
W.P.No.18428/2012 is filed under Articles 226 and
227 of the Constitution of India, praying to quash the communication No.CJRC-1/2010 dated 18.2.2012 vide
Annexure –M issued by the respondent, etc.
In W.P.NO.6380/2012
BETWEEN:
Ms. Suneetha, Aged about 32 years,
D/o. Sri Annaiah, Residing at 87/1, 2nd Cross,
KHB Colony, Gubbi Town, Tumkur District – 572 216.
…PETITIONER
(By Sri R. Somasundara, Adv.)
AND:
1. The Registrar General, High Court of Karnataka,
Bangalore – 560 001.
2. The Secretary, Civil Judges Recruitment Committee,
High Court of Karnataka, Bangalore – 560 001.
3. The Government of Karnataka,
Represented by its Chief Secretary,
Secretariat, Vidhana Soudha, Vidhana Veedi,
Bangalore – 560 001. …RESPONDENTS
(By Sri B.V. Acharya, Senior Adv. for R1 & R2;
Smt. Manjula R. Kamadolli, HCGP for R3)
3
In W.P.Nos.11611-11621/2012
BETWEEN:
1. Syed Baleegur Rahaman,
S/o. Syed Kaleemulla, Aged 35 years,
Assistant Public Prosecutor, Court of Civil Judge (Jr. Dvn.) and JMFC,
Chintamani, Chikkaballapur District.
2. Madhu A.V.
W/o. D. Dayanand, Aged 31 years,
Assistant Public Prosecutor,
Court of Civil Judge (Sr. Dvn.) and JMFC, Madhugiri,
Tumkur District.
3. Rajashekar M. Tilanganji, S/o. Mallikarjun,
Aged 31 years, Assistant Public Prosecutor,
Court of Civil Judge (Jr. Dvn.) and JMFC, Siddapur Taluk,
Uttara Kannada District.
4. Hayyalappa, S/o. Ningappa Balbatti,
Aged 40 years,
Assistant Public Prosecutor, Court of Civil Judge (Jr. Dvn.) and JMFC,
Lingusugur, Raichur District.
5. D. Dayanand
S/o. K.V. Devendrappa, Aged 31 years,
4
Assistant Public Prosecutor,
Court of IIIrd Addl. Civil Judge (IInd Dvn.) and JMFC,
Tumkur, Tumkur District.
6. Jagadeesh G. Biseratti,
S/o. Gulappa Biseratti, Aged 35 years,
Assistant Public Prosecutor Cum Assistant Government Pleader,
Court of Civil Judge and JMFC, Hadagali,
Bellary District.
7. J.R. Ramesh,
S/o. Ramanna, age 38 years, Assistant Public Prosecutor
Cum Assistant Government Pleader, Court of Civil Judge (Jr.Dvn.) and JMFC Court,
Srinivaspur, Kolar District.
8. Raghavendra Raykar,
S/o. Vasudeva, age 38 years, Assistant Public Prosecutor,
Court of Additional Civil Judge (Sr.Dvn.) and JMFC., Chikkamagalur,
Chikkamagalur District.
9. Thammanna C.
S/o. Chowdegowda, Aged 37 years,
Assistant Public Prosecutor, Court of Addl. Civil Judge (Sr.Dvn.)
and JMFC., Puttur, Dakshina Kannada District.
5
10. Mallikarjunagouda Doddagoudar,
S/o. Basavanagowda, Age 32 years,
Assistant Public Prosecutor, Court of Civil Judge (Jr.Dvn.) and JMFC Court,
Savanur Taluk, Haveri District.
11. Amaravathi,
W/o. Dr. Nagappa B.H. Age 31 years,
Assistant Public Prosecutor Cum Assistant Government Pleader,
Court of Civil Judge (Sr.Dvn.) and JMFC, Savadatti, Belgaum District.
…PETITIONERS
(By Sri Vikas Rojipura for M/s. Ravivarma Kumar Associates, Advs.)
AND:
1. High Court of Karnataka,
Bangalore – 560 001 Represented by its Registrar General.
2. The Recruitment Committee for
Selection to the post of Civil Judges, Represented by Registrar General,
The High Court of Karnataka, Bangalore – 560 001.
3. State of Karnataka, Represented by its Secretary,
Department of Law, Vidhana Soudha,
Bangalore – 560 001. …RESPONDENTS
(By Sri B.V. Acharya Senior Adv. for R1 & R2; Smt. Manjula R. Kamadolli, HCGP for R3)
6
W.P.Nos.11611-11621/2012 is filed under Article
226 of the Constitution of India, praying to declare the resolution dated 22.4.2011 of R1, based on which APPs are
being denied the opportunity to be considered for appointment as Civil Judges under the Karnataka Judicial
Service (Recruitment) Rules 2004, in Annexure-A as amended by the Karnataka Judicial Service (Recruitment)
(Amendment) Rules, 2011, in Annexure –E, as illegal & void.
In W.P.Nos.38597-38600/2011
BETWEEN:
1. Sri N.A. Jayachandra Reddy,
S/o. late Ashwathanarayana Reddy,
Aged about 35 years, Occ: Junior Law Officer,
BBMP Legal Cell, Bruhat Bangalore Mahanagar Palike,
Bangalore, R/o. D.No.1396, Polytechnin Hostel Road,
Behind KEB Quarters, Chintamani, Chikkaballapura District.
2. Sri S.K. Ramegowda S/o. Krishnegowda,
Aged about 32 years, Occ: Junior Law Officer,
BBMP Legal Cell, Bruhat Bangalore Mahanagar Palike,
Bangalore,
R/o. No.159 R.M.L. Road, Sollepura, At post: Kikkeri HO, Tq: K.R. Pet,
Mandya District.
3. Sri Basavaraj Y. Ambiger, S/o. Yamanappa Ambiger,
Aged about 32 years, Occ: Junior Law Officer,
7
BBMP Legal Cell,
Bruhat Bangalore Mahanagar Palike, Bangalore,
R/o. No.13, 4th ‘D’ Main, Bairaveshwaranagar,
Nagarbhavi Main Road, Bangalore – 560 072.
4. Smt. Chaitra Honnapura,
D/o. Indudhar HOnnapura, Aged about 28 years,
Occ: Junior Law Officer, BBMP Legal Cell,
Bruhat Bangalore Mahanagar Palike, Bangalore,
R/o. No.402, 1st Main, II Block,
HBR Layout, Bangalore.
…PETITIONERS
(By Sri I.G.Gachchinamath, Adv.)
AND:
1. The State of Karnataka, By its Secretary to Department of Law,
Justice and Human Rights Department, Vidhana Soudha,
Bangalore – 560 001.
2. The Under Secretary to Government,
(Admn-I), Law, Justice and Human Rights Department,
Vidhana Soudha, Bangalore – 560 001.
3. The Registrar General,
High Court of Karnataka, Bangalore – 560 001.
8
4. The Secretary,
Civil Judges Recruitment Committee, High Court of Karnataka,
Bangalore – 560 001. …RESPONDENTS
(By Smt. Manjula R. Kamadolli, HCGP)
W.P.Nos.38597-38600/2011 are filed under Articles 226 and 227 of the Constitution of India, praying to call for
the records and direct the respondents to modify the Notification specifying eligibility conditions vide Annexure –
E dated 6.8.2011 including the Junior Law Officers of BBMP under category B(3) and further permit the petitioners to
take up the examination for the post of Civil Judge.
These petitions having been reserved, the Court
pronounced the following:
O R D E R
These petitions involve common questions of fact
and law in the matter of direct recruitment to the posts of
Civil Judges. In substance, petitioners have sought
striking down the provision under Sl.No.3, Rule 4 of the
Karnataka Judicial Service (Recruitment) Rules, 2004, as
inserted by the Karnataka Judicial Service (Recruitment)
(Amendment) Rules, 2011, (for short “Rules, 2011”),
framed by the Governor of Karnataka in exercise of powers
9
conferred by Articles 233 and 234 of the Constitution of
India. The petitioners have also sought incidental reliefs.
2. Petitioners in W.P.No.6380/2012 and
W.P.Nos.11611-11621/2012 are working as Additional
Public Prosecutors-cum-Additional Government Pleaders,
having been recruited by the Government of Karnataka.
Petitioner in W.P.No.18428/2012, a law graduate and
enrolled as an advocate in the Karnataka State Bar
Council, having been recruited as FDA in the Revenue
Department of Government of Karnataka has joined
Karnataka Government service. Petitioners in W.P.38597-
38600/2011, being law graduates, after enrolling as
advocates in the Karnataka State Bar Council, are now
working as Junior Law Officers in Bruhat Bangalore
Mahanagara Palike as its servants.
3. On 6.8.2011, High Court of Karnataka, invited
applications for recruitment to 152 posts of “Civil Judge
(the then Civil Judge) (Jr.Dn.)”. A Notification bearing
No.CJRC 1/2010, Bangalore, dated the 6th August, 2011
10
was published in the Karnataka Gazette. The qualification
prescribed for direct recruitment is that the candidate must
be holder of a degree in law and must have been enrolled
as an advocate. For recruitment of in-service candidates,
the minimum qualification prescribed is degree in law
granted by a University and the candidate as on the last
date fixed for receipt of applications, must not have
crossed 43 years of age in case of he/she belonging to
SC/ST and 40 years of age in case of others. It was made
clear as per “Sl.No.B(3)-Recruitment of in-service
candidates” of the said Notification that, no officer/official in
service shall be eligible for appointment as Civil Judge unless
he/she is working in the High Court and Courts subordinate to the
High Court.
4. Petitioners possessing law degree and having
enrolled as advocates, sent their applications as ‘in-service
candidates’. While scruitinising the applications, it was
noticed that the petitioners are not working in the High
Court and Courts subordinate to the High Court and hence,
the petitioners’ applications were rejected i.e., on the
11
ground that they fall outside the condition under the
heading “B- Recruitment of in-service candidates” of the
said Notification. Assailing the validity of Sub-Rule (3) of
Rule 4 of the Karnataka Judicial Service (Recruitment)
(Amendment) Rules, 2011 and also the aforesaid clause in
the recruitment Notification, these writ petitions have been
filed.
5. Statement of objections has been filed by the
respondents in justification of the impugned Rule, the
condition in the recruitment notification and also the
decision taken by the Recruitment Committee to reject the
applications of the petitioners. It has been stated that the
impugned Rule is valid and consequently, the impugned
condition in the recruitment Notification is also valid and
since the petitioners do not fall within the meaning of
‘service’ defined under R.2(f) of the Rules, they are not
entitled to participate in the recruitment process
undertaken as per the Recruitment Notification dated
6.8.2011.
12
6. Having perused the writ petitions and the
counters filed, it is apparent that the dispute is as to the
validity of the provision under heading “B – Recruitment of
in-service candidates”. The said Rule reads as follows:
“B – Recruitment of in-service candidates”:-
(1)…………………..
(2)………………….
(3) “No officer/official in service shall be eligible for
appointment as Civil Judge unless he/she is working in the
High Court and Courts subordinate to the High Court in the
following cadres, namely:-
(a) Deputy Registrars
(b) Assistant Registrars / Public Relation Officer / Chief
Librarian.
(c) Section Officers / Court Officers / Senior Judgment
Writers / Deputy Librarians.
(d) Assistant Court Officers / Senior Assistants / Judgment
Writers.
(e) Stenographers / First Division Assistants / Assistant
Librarians.
(f) Chief Administrative Officer / Assistant Registrars.
(g) Sheristedars and Senior Sheristedars.
(h) Bench Clerks-Grade I and II.”
13
7. Learned advocates appearing for the
petitioners contended, that by prescribing the restriction/
limitation, that an applicant must be an officer/official in
Karnataka Judicial Service working in the High Court and
Courts subordinate to the High Court, the Rule has violated
their fundamental rights guaranteed under Articles 14 and
16(1) of the Constitution of India. They submitted that on
account of the amended Rule prescribing limitation, the
petitioners who are law graduates also enrolled as
advocates and being civil servants or persons working in
local bodies, stand disqualified and the action amounts to
hostile discrimination. They contended that there has to
be equality of opportunity to all citizens in the matters
relating to employment or appointment to any office under
the State and that Article 14 forbids class legislation.
Learned counsel further contend that the impugned Rule
being ultra vires of the Constitution, be struck down.
8. Sri B.V. Acharya, learned Senior counsel,
appearing for the High Court and the Recruitment
14
Committee, on the other hand, contended that when the
statutory Rule is assailed on the ground that it contravenes
Article 14, its validity can be sustained, if, two tests are
satisfied i.e., (1) The classification on which it is founded
must be based on an intelligible differentia which
distinguishes persons or things grouped together from
others left out of the group; and (2) That the differentia in
question must have a reasonable relation to the object
sought to be achieved by the rule or statutory provision in
question. He submitted that the classification on which
statutory provision must be founded may be referable to
different considerations or the objects sought to be
achieved and that there must be some nexus between the
basis of the classification and object intended to be
achieved by the Statute. He submitted that the object of
the Rules is to recruit suitable and proper persons to the
judicial service in the State of Karnataka with a view to
secure fair and efficient administration of justice and with
that view, a policy decision was taken by the Full Court of
the High Court, to permit recruitment of in-service
15
candidates by limiting the same to the officers/officials
working in the High Court and courts subordinate to the
High Court. He submitted that it is permissible for an
employer to take a policy decision with the view to secure
fair and efficient administration. He further submitted that
the recruitment of in-service candidates was ‘limited to in-
service candidates’, as above, keeping in view the decision
in the case of Mallaraddi H. Itagi and others vs. High Court
of Karnataka, by its Registrar General and another, ILR
2002 KAR 2093, which was upheld by the Apex Court in
C.A.947-956/2003 on 18.5.2009.
9. ‘Recruitment of in-service candidates’ has been
limited to those officers and officials working in the High
Court and the Courts subordinate to the High Court. Is the
impugned Rule valid?
10. There is no dispute that the petitioners are not
in ‘Karnataka Judicial Service’ working either in the High
Court or the Courts subordinate to it. Sri Mallaraddi H.
Itagi and others, either as Public Prosecutors or Senior
16
Public Prosecutors, who were in service of the State of
Karnataka, had filed W.P.Nos.47330 to 47339/2001,
aggrieved by a decision taken by the Committee
constituted by the High Court for the purpose of
considering the claims of the applicants for appointment to
the posts of District Judges, wherein, the Committee had
taken a decision that, Assistant Public Prosecutors/Senior
Public Prosecutors/Public Prosecutors, are not eligible to be
considered for recruitment to the posts of District Judges.
After consideration of the rival contentions, the writ
petitions were dismissed (See ILR 2002 KAR 2093). The
said order having been assailed by the unsuccessful writ
petitioners, was upheld by the Apex Court in C.A. 947-
956/2003, on 18.05.2009. It was found that the
Additional Public Prosecutors/Public Prosecutors are regular
Government servants, who have been employed under the
State Government Rules called “The Karnataka
Department of Prosecutions and Government Litigations
(Recruitment) Rules”, 1982 and that they could not be said
17
to be the advocates while working as Additional Public
Prosecutors or Public Prosecutors.
11. In the case of Union of India vs. Pushpa Rani
and Others, (2008) 2 SCC (L&S) 851, the Apex Court has
held as follows:
“37. Before parting with this aspect of the case, we consider it
necessary to reiterate the settled legal position that matters
relating to creation and abolition of posts, formation and
structuring/restructuring of cadres, prescribing the source/mode
of recruitment and qualifications, criteria of selection, evaluation
of service records of the employees fall within the exclusive
domain of the employer. What steps should be taken for
improving efficiency of the administration is also the preserve of
the employer. The power of judicial review can be exercised in
such matters only if it is shown that the action of the employer is
contrary to any constitutional or statutory provision or is patently
arbitrary or is vitiated due to mala fides. The court cannot sit in
appeal over the judgment of the employer and ordain that a
particular post be filled by direct recruitment or promotion or by
transfer. The court has no role in determining the methodology
of recruitment or laying down the criteria of selection. It is also
not open to the court to make comparative evaluation of the
merit of the candidates. The court cannot suggest the manner
in which the employer should structure or restructure the cadres
for the purpose of improving efficiency of administration.”
18
12. In the case of State of Gujarath and Others vs.
Arvindkumar T Tiwari and Another, (2012) 9 SCC 545, the
Apex Court has held as follows:
“12. Fixing eligibility for a particular post or even for admission to
a course falls within the exclusive domain of the legislature/
executive and cannot be the subject-matter of judicial review,
unless found to be arbitrary, unreasonable or has been fixed
without keeping in mind the nature of service, for which
appointments are to be made, or has no rational nexus with the
object(s) sought to be achieved by the statute. Such eligibility
can be changed even for the purpose of promotion, unilaterally
and the person seeking such promotion cannot raise the
grievance that he should be governed only by the rules existing,
when he joined service. In the matter of appointments, the
authority concerned has unfettered powers so far as the
procedural aspects are concerned, but it must meet the
requirement of eligibility, etc. The court should therefore, refrain
from interfering, unless the appointments so made, or the
rejection of a candidature is found to have been done at the cost
of “fair play”, “good conscience” and “equity”. (Vide State of J &
K Vs. Shiv Ram Sharma, (1999) 3 SCC 653 and Praveen Singh
Vs. State of Punjab, (2000) 9 SCC 633.”
13. Keeping in view the order/decision in the case
of Mallaraddy H. Itagi (supra), the Full Court of the High
19
Court has taken the policy decision to place limitation in
the matter of recruitment of in-service candidates, to the
officers and officials working in the High Court and Courts
subordinate to the High Court. Based on the
recommendation of the High Court, the Rule was
amended, providing for recruitment of in-service
candidates, limited to the officers/officials working in the
High Court and Courts subordinate to the High Court.
14. In the case of Hamdard Dawakhana and
Another vs. The Union of India, AIR 1960 SC 554, while
referring to the earlier decisions, the Apex Court has held
as follows:
“ 8. Therefore when the constitutionality of an enactment is
challenged on the ground of violation of any of the articles in Part III
of the Constitution, the ascertainment of its true nature and character
becomes necessary i.e., its subject matter, the area in which it is
intended to operate, its purport and intent have to be determined. In
order to do so it is legitimate to take into consideration all the factors
such as history of the legislation, the purpose thereof, the
surrounding circumstances and conditions, the mischief which it
intended to suppress, the remedy for the disease which the
legislature resolved to cure and the true reason for the remedy.”
20
15. The object of the Rules is to recruit suitable
and proper persons to the Karnataka Judicial Service with
a view to secure fair and efficient administration of justice.
It is trite that the competent authority can prescribe
qualifications for eligibility for appointment to the Service.
With the said object in view, in the matter of recruitment
of in-service candidates, limitation has been placed, since
the officers and officials working in the High Court and
Courts subordinate to the High Court, would be aware of
the procedures and practices followed by the Courts in the
matter of efficient administration of justice. This Court and
the Apex Court, in the case of Mallaraddi H Itagi (supra),
have highlighted as to how the Additional Public
Prosecutors/ Public Prosecutors being Government
servants, are not qualified to appear in the recruitment
process to the posts of District Judges. The position of
Junior Law Officers working in Bruhat Bangalore
Mahanagara Palike or FDA in Revenue Department, cannot
be different. The High Court, while recommending for
21
amendment of the Rule to provide for recruitment of in-
service candidates, has kept in view the findings and
observations made in the cases of Mallaraddi H Itagi
(supra). In the said background, the policy decision taken by
the High Court in the matter of limitation placed with regard to
the recruitment of in-service candidates is reasonable and does
not amount to hostile discrimination. There is rational basis
in the matter of placing the limitation with regard to
recruitment of in-service candidates is concerned. In my
considered opinion, the impugned Rule meets the two
tests, noticed supra. Consequently, the impugned Rule
cannot be declared as ultra vires. The condition stipulated
at Clause B- Recruitment of in-service candidates - Sl.No.3 of
the Notification CJRC 1/2010 dated 6th August 2011 is in
consonance with the amended Rule 4 of the Rules.
16. There being no provision for submission of
applications by the officers/officials working in Government
Departments/local bodies etc., i.e., other than those
22
working in the High Court and Courts subordinate to the
High Court, the rejection of applications of the petitioners
by the Recruitment Committee is flawless.
In the result, writ petitions stand dismissed, with no
order as to costs.
Sd/- JUDGE
Ksj/- sac*